(PC) Reyna v. Kings County Jail ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN REYNA, 1:20-cv-00447-ADA-GSA-PC 12 ORDER DENYING MOTION TO Plaintiff, COMPEL 13 vs. (ECF No. 28.) 14 KINGS COUNTY JAIL, et al., 15 Defendants. 16 17 18 19 I. BACKGROUND 20 John Reyna (“Plaintiff”) is a Kings County Jail inmate proceeding pro se and in forma 21 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 22 commencing this action on March 27, 2020. (ECF No. 1.) This case proceeds with the First 23 Amended Complaint filed on November 19, 2021 against Defendants Valdez, Putnam, and 24 Alcala, for retaliation in violation of the First Amendment. (ECF No. 13.) 25 On September 6, 2022, the Court issued the Discovery and Scheduling Order setting out 26 deadlines for the parties including a discovery deadline of March 6, 2023 and a dispositive motion 27 filing deadline of May 6, 2023. (ECF No. 24.) The deadlines have expired and have not been 28 extended. 1 On May 3, 2023, Plaintiff filed a motion to compel discovery responses and a request for 2 a copy of his deposition transcript. (ECF No. 28). On May 17, 2023, Defendants filed an 3 opposition to the motion to compel. (ECF No. 29.) Plaintiff has not filed a reply to the 4 opposition. The motion to compel is now before the Court. Local Rule 230(l). 5 II. PLAINTIFF’S MOTION 6 A. Motion to Compel Discovery Responses 7 Plaintiff seeks to compel responses by Defendants to his requests for production of 8 documents and interrogatories served on or about February 27, 2023. 9 Defendants argue that Plaintiff’s motion to compel was filed after the March 6, 2023 10 discovery deadline, and he has not shown good cause for the Court to consider his late motion. 11 Defendants also argue that Plaintiff’s discovery requests were not timely served on Defendants 12 and Plaintiff has not demonstrated good cause why he served the discovery requests late. 13 Defendants assert that Plaintiff served his request for production of documents and request for 14 interrogatories on Defendants on February 27, 2023, and thus, under Rules 33(b)(2) and 34(b)(2) 15 of the Federal Rules of Civil Procedure, the responses were due 30 days later on March 29, 2023, 16 which is after the March 6, 2023 discovery deadline. 17 Discussion 18 Pursuant to the Court’s Discovery and Scheduling Order, served on the parties on 19 September 6, 2022: 20 “Responses to written discovery requests shall be due 30 calendar days 21 after the request is served. All discovery requests must be served at least 60 22 calendar days before the discovery deadline. All motions to compel must be filed 23 on or before the discovery deadline.” (ECF No. 24 at 2:5-7.) 24 and 25 “All discovery, including the filing of any motions to compel, SHALL be 26 completed on or before 03/06/2023. Absent good cause, discovery motions will 27 not be considered if filed after the discovery deadline.” (ECF No. 24 at 4:1-3.) 28 /// 1 Plaintiff’s motion to compel is untimely and he has not shown good cause to reopen 2 discovery. Plaintiff filed the motion to compel almost two months after the March 6, 2023 3 discovery deadline expired. To reopen discovery at this juncture would require modification of 4 the court’s Scheduling Order. 5 Modification of the court’s Scheduling Order requires a showing of good cause, Fed. R. 6 Civ. P. 16(b), and good cause requires a showing of due diligence, Johnson v. Mammoth 7 Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). To establish good cause, the party seeking 8 the modification of a scheduling order must generally show that even with the exercise of due 9 diligence, he or she cannot meet the requirement of the order. Id. If the party seeking to amend 10 the scheduling order fails to show due diligence, the inquiry should end and the court should not 11 grant the motion to modify. Zivkovic v. Southern California Edison, Co., 302 F.3d 1080, 1087 12 (9th Cir. 2002). The court may also consider the prejudice to other parties. 13 Plaintiff has not demonstrated that with due diligence he could not have completed 14 discovery by the March 6, 2023 deadline. Plaintiff has not explained why he could not complete 15 his discovery requests or his motion to compel within the time allowed. This case was filed 16 more than three years ago and should not be delayed further. Therefore, Plaintiff’s motion to 17 compel discovery responses must be denied. 18 B. Motion for Copy of Deposition Transcript 19 Plaintiff asserts that on January 19, 2023, he requested a copy of his deposition transcript 20 from defense counsel, and he has not been provided a copy. Plaintiff seeks to compel Defendants 21 to provide him with a copy of the transcript. 22 This Court has no authority to require Defendants to cover the cost of the deposition 23 transcript despite Plaintiff proceeding pro se and in forma pauperis. Sharpe v. Cryer, No. 24 119CV00711ADAEPGPC, 2023 WL 3726145, at *1 (E.D. Cal. May 30, 2023) (citing see 25 Clemente v. Parciasepe, No. 2:14-CV-0611 KJN P, 2015 WL 6447495, at *2 (E.D. Cal. Oct. 23, 26 2015) (“Defense counsel is correct that defendant is not required to provide plaintiff with a free 27 copy of a deposition transcript.”)). 28 1 Moreover, to the extent that Plaintiff would seek the use of Court funds to pay for a 2 deposition transcript, “[t]here also is no statutory requirement for the Court . . . to provide a 3 litigant proceeding in forma pauperis with copies of deposition transcripts.” Id. (quoting Davis 4 v. Molina, No. 1:14-CV-1554-BAM (PC), 2017 WL 11707632, at *1 (E.D. Cal. Sept. 27, 2017) 5 (also denying a plaintiff’s request for a defendant to provide him with a copy of a deposition 6 transcript)). 7 Pursuant to Federal Rule of Civil Procedure 30, a party may obtain a copy of a deposition 8 transcript upon reasonable payment of fees, and Plaintiff’s in forma pauperis status does not 9 entitle him to a free copy. Tufono v. Ward, No. CV 19-7397-JFW (KS), 2021 WL 9684444, at 10 *1 (C.D. Cal. Dec. 22, 2021) (citing Fed. R. Civ. P. 30(f)(3); see also Vanderbusch v. Chokatos, 11 2018 WL 3031488, at *2 (E.D. Cal. June 15, 2018) (denying plaintiff’s request for court to order 12 defendants to provide a copy of deposition transcript) (citing Boston v. Garcia, 2013 WL 13 1165062, at *2 (E.D. Cal. Mar. 20, 2013) (same)). 14 A plaintiff must obtain deposition transcripts from the officer before whom the deposition 15 was taken—a court reporter or deposition officer. Id. (citing see Claiborne v. Battery, 2009 WL 16 530352, at *3 (E.D. Cal. Mar. 3, 2009) (denying plaintiff’s request for a court order directing the 17 defendant to provide him with a copy of his deposition transcript)). 18 Accordingly, Plaintiff’s request for a copy of his deposition transcript shall be DENIED. 19 III. CONCLUSION 20 Based on the foregoing, Plaintiff’s motion to compel, filed on May 17, 2023, is DENIED. 21 IT IS SO ORDERED. 22 23 Dated: June 2, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28